EMPLOYMENT AGREEMENT
Exhibit 10.1
This Employment Agreement (this “Agreement”) is entered into as of the 14th
day of September, 2010 (the “Effective Date”) by and between Xxxxxxxxxxx International
Ltd., a Swiss joint-stock corporation registered in Switzerland, Canton of Zug (the
“Company”), and Xxxxxx X. Xxxxxx (the “Executive”).
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has previously determined that it is in the
best interests of the Company and its shareholders to retain the Executive and to induce the
employment of the Executive for the long-term benefit of the Company; and
WHEREAS, Company and the Executive have entered into employment agreements heretofore, the
most recent of which is dated as of December 31, 2009, which is currently in effect; and
WHEREAS, the Company desires to continue to employ the Executive on the terms set forth below
to provide services to the Company and its Affiliated companies and the Executive is willing to
accept such continued employment and provide such services on the terms set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto do hereby agree that:
1. Certain Definitions.
(a) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
(b) “Board” shall mean the Board of Directors of the Company.
(c) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(d) “Change of Control” for the purposes of Section 8 and 11 of this
Agreement shall mean a change in the ownership or effective control of the Company or a change in
the ownership of a substantial portion of the assets of the Company, in each case as defined under
Section 280G of the Code.
(e) “Company” shall mean Xxxxxxxxxxx International Ltd., a Swiss joint-stock
corporation registered in Switzerland, Canton of Zug, or any successor to Xxxxxxxxxxx International
Ltd., including but not limited to any Entity into which Xxxxxxxxxxx International Ltd. is merged,
consolidated or amalgamated, or any Entity otherwise resulting from a Corporate Transaction.
(f) “Company’s Assets” shall mean the assets (of any kind) owned by the
Company, including, without limitation, the securities of the Company’s Subsidiaries and any of the
assets owned by the Company’s Subsidiaries.
(g) “Disability” shall mean the absence of the Executive from performance of
the Executive’s duties with the Company on a substantial basis for one hundred twenty (120)
calendar days as a result of incapacity due to mental or physical illness.
(h) “Employment Period” shall mean the period commencing on the Effective
Date and ending on the earlier of March 31, 2013 or termination of the Executive’s employment
pursuant to Section 4.
(i) “Entity” shall mean any corporation, partnership, association,
joint-stock company, limited liability company, trust, unincorporated organization or other
business entity.
(j) “ERP” shall mean the Xxxxxxxxxxx International Ltd. Nonqualified
Executive Retirement Plan, as amended and restated effective December 31, 2008, as it may be
amended from time to time.
(k) “Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as
amended from time to time.
(l) “IRS” shall mean the U.S. Internal Revenue Service.
(m) “Person” shall have the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its Subsidiaries, (ii) a trustee or other fiduciary holding
securities under a Benefit Plan of the Company or any of its Affiliated companies, (iii) an
underwriter temporarily holding securities pursuant to an offering by the Company of such
securities, or (iv) a corporation or other Entity owned, directly or indirectly, by the
shareholders of the Company in the same proportions as their ownership of registered shares of the
Company.
(n) “Section 409A” means Section 409A of the Code and the final Department
of Treasury regulations issued thereunder.
(o) “Section 409A Amounts” means those amounts that are deferred
compensation subject to Section 409A.
(p) “Separation From Service” shall have the meaning ascribed to such term
in Section 409A.
(q) “Specified Employee” shall have the meaning ascribed to such term in
Section 409A.
(r) “SERP” shall mean the Xxxxxxxxxxx International, Inc. Supplemental
Executive Retirement Plan effective January 1, 2010, as it may be amended from time to time.
(s) “Subsidiary” shall mean any majority-owned subsidiary of the Company or
any majority-owned subsidiary thereof, or any other Entity in which the Company owns, directly or
indirectly, a significant financial interest provided that the Chief Executive Officer of the
Company designates such Entity to be a Subsidiary for the purposes of this Agreement.
For purposes of any equity compensation awards granted to Employee on or after January 1, 2010, the
terms “Cause”, “Good Reason” shall have the meanings assigned to such terms, respectively, in the
Form of Amended and Restated Employment Agreement between the Company and its executive officers as
filed with the Securities and Exchange Commission as Exhibit 10.1 to the Current Report on Form 8-K
filed by the Company on April 13, 2010. Specifically, these definitions apply to the Performance
Share Unit Award Agreement between the Company and the Executive dated as of March 18, 2010 such
that awards thereunder vest on termination by the Company without Cause or by the Executive for
Good Reason to the extent provided in such agreement.
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2. Employment Period. The Company hereby agrees that the Company will continue
the Executive in its employ, and the Executive hereby agrees to remain in the employ of the Company
subject to the terms and conditions of this Agreement during the Employment Period. During the
Employment Period, the Executive, with his prior express agreement, may be seconded to the
employment of Xxxxxxxxxxx U.S., L.P. (or such other Affiliated company as specifically agreed by
the Executive) (the “Seconded Affiliate Company”), but without prejudice to the Company’s
obligations or the Executive’s rights under this Agreement. The Executive shall carry out his
duties as if they were duties to be performed on behalf of the Company. Each Seconded Affiliate
Company shall be subject to all of the obligations and agreements of the Company under this
Agreement and the Company shall be responsible for actions and inactions of the Seconded Affiliate
Company. Any breach or failure to abide by the terms and conditions of this Agreement by a
Seconded Affiliate Company shall be deemed to constitute a breach or failure to abide by the
Company.
3. Terms of Employment.
(a) Base Salary. During the Employment Period, the Executive shall receive an
annual base salary at least equal to the current base salary being received by the Executive
(“Annual Base Salary”), which shall be paid at a monthly rate.
(b) Annual Bonus. The Executive shall be eligible for an annual bonus for each
fiscal year ending during the Employment Period on the same basis as other executive officers under
the Company’s then-current executive officer annual incentive program. Each such annual bonus
shall be paid no later than two and a half (21/2) months after the end of the fiscal year for which
the annual bonus is awarded.
(c) Incentive, Savings and Retirement Plans. During the Employment Period, the
Executive shall be entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs in which similarly situated executive officers of the Company and
its Affiliated companies participate.
(d) Welfare Benefit Plans. During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible to participate in and shall receive all
benefits under welfare benefit and retirement plans, practices, policies and programs provided by
the Company and its Affiliated companies (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) in which similarly situated executive officers of the
Company and its Affiliated companies participate.
(e) Fringe Benefits. During the Employment Period, the Executive shall be entitled
to (A) at Executive’s option, a monthly car allowance or use of an automobile, and (B) such other
fringe benefits (including, without limitation, payment of club dues, financial planning services,
cellular telephone, mobile email, annual physical examinations, payment of professional fees and
professional taxes and payment of related expenses, as appropriate) in which similarly situated
executive officers of the Company and its Affiliated companies participate or which they receive.
(f) Expenses. During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the Executive in accordance
with the most favorable policies, practices and procedures of the Company and its Affiliated
companies in effect for the Executive on the date hereof.
(g) Vacation. During the Employment Period, the Executive shall be entitled to at
least four
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(4) weeks paid vacation or such greater amount of paid vacation as may be applicable to the
executive officers of the Company and its Affiliated companies.
(h) Deferred Compensation Plan. During the Employment Period, the Executive shall
be entitled to participate in any deferred compensation or similar plans in which executive
officers of the Company and its Affiliated companies may participate.
4. Termination of Employment.
(a) Death or Disability. The Executive’s employment shall terminate automatically
upon the Executive’s death during the Employment Period. If the Company determines in good faith
that the Disability of the Executive has occurred during the Employment Period, it may provide the
Executive with written notice in accordance with Section 13(b) of its intention to
terminate the Executive’s employment. In such event, the Executive’s employment with the Company
shall terminate effective thirty (30) days after receipt of such notice by the Executive (the
“Disability Effective Date”), provided that within the thirty (30)-day period after such receipt,
the Executive shall not have returned to full-time performance of the Executive’s duties. In
addition, if a physician selected by the Executive determines that the Disability of the Executive
has occurred, the Executive (or his representative) may provide the Company with written notice in
accordance with Section 13(b) of the Executive’s intention to terminate his employment. In
such event, the Disability Effective Date shall be thirty (30) days after receipt of such notice by
the Company.
(b) By the Company. The Company may terminate the Executive’s employment during the
Employment Period for any reason.
(c) By the Executive. The Executive’s employment may be terminated by the Executive
at any time during the Employment Period for any reason.
(d) Notice of Termination. Any termination during the Employment Period by the
Company or by the Executive shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 13(b). For purposes of this Agreement, a
“Notice of Termination” means a written notice which (i) indicates that the Executive’s
employment is being terminated and (ii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date.
(e) Date of Termination. “Date of Termination” shall mean the date on which
the Executive receives or gives notice of termination or any later date specified therein (which
shall not be more than 30 days after the date of such notice); provided however, that if
Executive’s employment is terminated by reason of death or Disability, the Date of Termination
shall be the date of death of the Executive or the Disability Effective Date, as the case may be.
5. Obligations of the Company Upon Termination.
(a) Benefit Obligation and Accrued Obligation Defined. For purposes of this
Agreement, “Benefit Obligation” shall mean all benefits to which the Executive (or his
designated beneficiary or legal representative, as applicable) is entitled or vested (or becomes
entitled or vested as a result of termination) under the terms of all employee benefit and
compensation plans, agreements, arrangements, programs, policies, practices, contracts or
agreements of the Company and its Affiliated companies, including but not limited to the ERP, the
SERP (including accrued interest and the right to receive registered shares of the Company under
the SERP as provided in the SERP as amended as of March 31, 2010, and April 8, 2010), omnibus
incentive plans and related award agreements and the Executive Deferred Compensation
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Plan, (collectively, “Benefit Plans”), in which the Executive is a participant or to
which the Executive is entitled to benefits as of the Date of Termination, to the extent not
theretofore paid or provided. “Accrued Obligation” means the Executive’s Annual Base
Salary through the Date of Termination for periods through but not following his Separation From
Service.
(b) Payments and Benefits Upon and After Termination. If, during the Employment
Period, the Executive’s employment is terminated under Section 4, including by the Company
for any reason whatsoever:
(i) The Company shall pay (or cause to be paid) to the Executive (or Executive’s
heirs, beneficiaries or representatives as applicable), (A) the Accrued Obligation in cash within
thirty (30) days after the Date of Termination; (B) the Benefit Obligation, at the time or times
determined below, and in the form and manner and otherwise as provided under the terms of the
applicable plan, and (C) a lump sum amount equal to $7,251,348.00, payable in cash in U.S. dollars
at the time or times determined below.
(ii) For three years from the Executive’s Date of Termination, or such longer period
as may be provided by the terms of the appropriate plan, program, practice or policy, the Company
shall continue benefits to the Executive and the Executive’s family equal to those which would have
been provided to them in accordance with the plans, programs, practices and policies described in
Section 3(d) if the Executive’s employment had not been terminated; provided,
however, that with respect to any of such plans, programs, practices or policies requiring
an employee contribution, the Executive (or Executive’s heirs or beneficiaries as applicable) shall
continue to pay the monthly employee contribution for same, and provided further, that if the
Executive becomes re-employed by another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan during such applicable
period of eligibility. If any of the dental, accident, health insurance or other benefits specified
in this Section 5(b)(ii) are taxable to the Executive and are not exempt from Section 409A,
the following provisions shall apply to the reimbursement or provision of such benefits. The
Executive shall be eligible for reimbursement for covered welfare expenses, or for the provision of
such benefits on an in-kind basis, during the period commencing on Executive’s Date of Termination
and ending on the third anniversary of such date. The amount of such welfare benefit expenses
eligible for reimbursement or the in-kind benefits provided under this Section 5(b)(ii),
during the Executive’s taxable year will not affect the expenses eligible for reimbursement, or the
benefits to be provided, in any other taxable year (with the exception of applicable lifetime
maximums applicable to medical expenses or medical benefits described in Section 105(b) of the
Code). The Executive’s right to reimbursement or direct provision of benefits under this
Section 5(b)(ii) is not subject to liquidation or exchange for another benefit. To the
extent that the benefits provided to the Executive pursuant to this Section 5(b)(ii) are
taxable to the Executive and are not otherwise exempt from Section 409A, any reimbursement amounts
to which the Executive would otherwise be entitled under this Section 5(b)(ii) during the
first six (6) months following the date of the Executive’s Separation From Service shall be
accumulated and paid to the Executive on the date that is six (6) months following the date of his
Separation From Service. All reimbursements by the Company under this Section 5(b)(ii)
shall be paid no later than the earlier of (i) the time periods described above and (ii) the last
day of the Executive’s taxable year following the taxable year in which the expense was incurred by
the Executive. For the avoidance of doubt, this paragraph does not limit or reduce any rights
relating to the provision of welfare benefits under the ERP and/or the SERP.
(iii) All benefits and amounts under the Company’s deferred compensation plan and
all other Benefit Plans not already vested shall become immediately one hundred percent (100%)
vested as of the Date of Termination. All options to acquire registered shares of the Company, all
restricted registered shares of the Company, all restricted stock units, and all share appreciation
rights the value of
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which is determined by reference to or based upon the value of registered shares of the
Company, held by the Executive under any plan of the Company or its Affiliated companies and in
each case granted to the Executive prior to January 1, 2010, shall become immediately vested,
exercisable, nonforfeitable and free of any liens or encumbrances in favor of the Company or any
Affiliate and any shares issued or to be issued with respect to such awards or pursuant to the ERP
and/or SERP shall be registered on a Form S-8. All options to acquire registered shares of the
Company, all restricted registered shares of the Company, all restricted stock units, all share
appreciation rights and all performance shares the value of which is determined by reference to or
based upon the value of registered shares of the Company, held by the Executive under any plan of
the Company or its Affiliated companies and in each case granted to the Executive on or after
January 1, 2010, shall be subject to the terms thereof, including with reference to the definitions
provided in the final paragraph of Section 1 of this Agreement.
(iv) If the Executive’s employment is terminated by reason of the Executive’s death, the
Benefit Obligation shall also include, without limitation, and the Executive’s estate and/or
beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits
provided by the Company and its Affiliated companies to the estates and beneficiaries of the
executive officers of the Company and such Affiliated companies under such plans, programs,
practices and policies relating to death benefits, if any, in effect on the date hereof.
(v) If the Executive’s employment is terminated by reason of the Executive’s Disability, the
Benefit Obligation shall also include, without limitation, and the Executive shall be entitled
after the Disability Effective Date to receive, disability and other benefits at least equal to the
most favorable benefits generally provided by the Company and its Affiliated companies to the
Executive’s disabled peer executive officers and/or their families in accordance with such plans,
programs, practices and policies relating to disability, if any, in effect generally on the date
hereof.
(vi) The Company shall pay or provide to the Executive the amounts or benefits specified in
Section 5(b)(i)(B) and (C) that are payable in cash thirty (30) days following the date of
the Executive’s Separation From Service if he is not a Specified Employee on the date of his
Separation From Service or on the date that is six (6) months following the date of his Separation
From Service if he is a Specified Employee. Amounts payable in shares will be paid at the times
specified as of the date of this Agreement in the relevant plan or agreement, and in any case at
the earliest time that would not result in adverse tax consequences to the Executive under Section
409A.
(vii) If the Executive is a Specified Employee, on the date that is six (6) months following
the Executive’s Separation From Service the Company shall pay to the Executive, in addition to the
amounts reflected in clause (vi), an amount equal to the interest that would be earned on the
amounts specified in Section 5(b)(i)(B) and (C) that are payable in cash and, to the extent subject
to a mandatory six-month delay in payment, all amounts payable in cash under the ERP and the SERP,
if any, for the period commencing on the date of the Executive’s Separation From Service until the
date of payment of such amounts, calculated using an interest rate of five percent (5%) per annum
(the “Interest Amount”).
6. Other Rights.
(a) Except as provided herein, nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any plan, program, policy or practice provided by
the Company or any of its Affiliated companies and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the Executive may have under any plan,
contract or agreement with the Company or any of its Affiliated companies. Except as otherwise
expressly provided herein, amounts which are vested benefits, which vest according to the terms of
this Agreement or which
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the Executive is otherwise entitled to receive under any Benefit Plans or any other plan,
policy, practice or program of or any contract or agreement with the Company or any of its
Affiliated companies prior to, at or subsequent to the Date of Termination shall be payable in
accordance with such plan, policy, practice, program, contract or agreement. If any severance
payments are required to be paid to the Executive in conjunction with severance of employment under
federal, state or local law, the severance payments paid to the Executive under this Agreement will
be deemed to be in satisfaction of any such statutorily required benefit obligations to the extent
that doing so would not result in an acceleration of payment of nonqualified deferred compensation
that is prohibited under Section 409A.
(b) Notwithstanding anything in this Agreement to the contrary, any and all
indemnification agreements between the Executive and the Company or any of its Affiliates in effect
as of the date hereof shall continue in full force and effect unless and until amended by the
mutual agreement of the Executive and the Company or such Affiliate.
7. Full Settlement.
(a) No Rights of Offset. The Company’s obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may
have against the Executive or others.
(b) No Mitigation Required. The Company agrees that, if the Executive’s employment
with the Company terminates, the Executive is not required to seek other employment or to attempt
in any way to reduce any amounts payable to the Executive by the Company pursuant to this
Agreement. Further, except as specified in Section 5(b)(ii), the amount of any payment or
benefit provided for in this Agreement shall not be reduced by any compensation earned by the
Executive as the result of employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by the Executive to the Company, or otherwise.
(c) Legal Fees. The Company agrees to pay promptly as incurred, to the full extent
permitted by law, all legal fees and expenses reasonably incurred by or on behalf of the Executive
or the Executive’s estate as a result of any contest (regardless of the outcome thereof) by the
Company or the Executive of the validity or enforceability of, or liability under, any provision of
this Agreement or any guarantee of performance thereto (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement). The legal fees or expenses
that are subject to reimbursement pursuant to this Section 7(c) shall not be limited as a
result of when the fees or expenses are incurred. The amount of legal fees or expenses that is
eligible for reimbursement pursuant to this Section 7(c) during a given taxable year of the
Executive shall not affect the amount of expenses eligible for reimbursement in any other taxable
year of the Executive. The right to reimbursement pursuant to this Section 7(c) is not
subject to liquidation or exchange for another benefit. Any amount to which the Executive is
entitled to reimbursement under this Section 7(c) during the first six (6) months following
the date of the Executive’s Separation From Service shall be accumulated and paid to the Executive
on the date that is six (6) months following the date of his Separation From Service. All
reimbursements by the Company under this Section 7(c) shall be paid no later than the
earlier of (i) the time periods described above and (ii) the last day of the Executive’s taxable
year next following the taxable year in which the expense was incurred by the Executive.
8. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary notwithstanding, if it shall be
determined that any payment or distribution by the Company or any of its Affiliated companies to or
for the benefit of the
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Executive (whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement, any other plan, agreement or contract or otherwise, but determined without regard
to any additional payments required under this Section 8) (a “Payment”) would be
subject to any additional tax or excise tax imposed by Sections 409A, 457A or 4999 of the Code (or
any successor provisions to Sections 409A, 457A or 4999) or any interest or penalties are incurred
by the Executive with respect to such excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the
Executive shall be entitled to promptly receive from the Company an additional payment (a
“Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes) including, without
limitation, any income taxes (and any interest and penalties imposed with respect thereto) and
Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments. Any Gross Up Payment shall be made by
the Company at least ten (10) days prior to the date that the Executive is required to remit to the
relevant taxing authority any federal, state and local taxes imposed upon the Executive, including
the amount of additional taxes imposed upon the Executive due to the Company’s payment of the
initial taxes on such amounts. Notwithstanding any provision of this Agreement to the contrary, any
amounts to which the Executive would otherwise be entitled under this Section 8(a) during
the first six (6) months following the date of the Executive’s Separation From Service shall be
accumulated and paid to the Executive on the date that is six (6) months following the date of his
Separation From Service. All reimbursements by the Company under this Section 8(a) be paid
no later than the earlier of (i) the time periods described above and (ii) the last day of the
Executive’s taxable year next following the taxable year in which the expense was incurred by the
Executive.
(b) Subject to the provisions of Section 8(c), all determinations required to be
made under this Section 8, including whether and when a Gross-Up Payment is required and the amount
of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination shall
be made by PricewaterhouseCoopers or, as provided below, such other certified public accounting
firm as may be designated by the Executive (the “Accounting Firm”) which shall provide
detailed supporting calculations both to the Company and the Executive within fifteen (15) business
days after the receipt of notice from the Executive that there has been a Payment, or such earlier
time as is requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor of the individual, Entity or group effecting the Change of Control, the
Executive shall appoint another nationally recognized accounting firm to make the determinations
hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up
Payment, as determined pursuant to this Section 8, shall be paid by the Company to the
Executive within five (5) days after the receipt of the Accounting Firm’s determination. Any
determination by the Accounting Firm, absent manifest error, shall be binding upon the Company and
the Executive, subject to the last sentence of Section 8(a), and in no event later than the
payment deadline specified in Section 8(a). As a result of the uncertainty in the
application of section 4999 of the Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company
should have been made (“Underpayment”), consistent with the calculations required to be
made hereunder. In the event that the Company exhausts its remedies pursuant to Section
8(c) and the Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the benefit of the Executive, subject
to the last sentence of Section 8(a), and in no event later than the payment deadline
specified in Section 8(a).
(c) The Executive shall notify the Company in writing of any claim by the IRS that,
if successful, would require the payment by the Company of the Gross-Up Payment (or an additional
Gross-Up Payment) in the event the IRS seeks higher payment. Such notification shall be given as
soon as
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practicable, but no later than ten (10) business days after the Executive is informed in
writing of such claim, and shall apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. The Executive shall not pay such claim prior to the
expiration of the thirty (30)-day period following the date on which he gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the Company relating to such
claim;
(ii) take such action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order to effectively contest such claim; and
(iv) permit the Company to participate in any proceedings relating to such claims;
provided, however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred at any time during the period that ends ten
(10) years following the lifetime of the Executive in connection with such proceedings and shall
indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses. Without limitation on the foregoing provisions of this
Section 8(c), the Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to
determination before any administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided, however, that if the Company
directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount
of such payment to the Executive, on an interest-free basis and shall indemnify and hold the
Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive with respect to
which such contested amount is claimed to be due is limited solely to such contested amount. The
Company shall not direct the Executive to pay such a claim and xxx for a refund if, due to the
prohibitions of section 402 of the Xxxxxxxx-Xxxxx Act of 2002, the Company may not advance to the
Executive the amount necessary to pay such claim. All such costs and expenses shall be made by the
Company at least ten (10) days prior to the date that the Executive is required to pay or incur
such costs and expenses. The costs and expenses that are subject to be paid by the Company pursuant
to this Section 8(c) shall not be limited as a result of when the costs or expenses are
incurred. The amounts of costs or expenses that are eligible for payment pursuant to this
Section 8(c)(iv) during a given taxable year of the Executive shall not affect the amount
of costs or expenses eligible for payment in any other taxable year of the Executive. The right to
payment of costs and expenses pursuant to this Section 8(c)(iv) is not subject to
liquidation or exchange for another benefit. Notwithstanding any provision of this Agreement to the
contrary, any amounts to which the Executive would otherwise be entitled under this Section
8(c)(iv) during the first six (6) months following the date of the Executive’s Separation From
Service shall be accumulated and paid to the Executive on the date that is six (6) months following
the date of his Separation From Service. All reimbursements by the Company under this
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Section 8(c)(iv) shall be paid no later than the earlier of (i) the time periods
described above and (ii) the last day of the Executive’s taxable year next following the taxable
year in which the expense was incurred by the Executive.
(d) If, after the receipt by the Executive of an amount advanced by the Company
pursuant to Section 8(c), the Executive becomes entitled to receive any refund with respect
to such claim, the Executive shall (subject to the Company’s complying with the requirements of
Section 8(c)) promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 8(c), a determination is
made that the Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination, then such advance shall not
be required to be repaid.
(e) Any provision in this Agreement or any other plan or agreement to the contrary
notwithstanding, if the Company is required to pay a Gross-Up Payment pursuant to the provisions of
this Agreement and pursuant to the provisions of another plan or agreement, then the Company shall
pay the total of the amounts determined pursuant to this Agreement and the provisions of such other
plan or agreement.
(f) The Company shall prepare, at its expense, all of Executive’s income tax returns
for all tax years through the year that includes the date of the last payment to Executive under
this Agreement.
(g) The Company shall provide amounts and benefits to the Executive that are
consistent with the Company’s policy for United States executive expatriates, which shall be at
least as favorable to the Executive as such policy for United States executive expatriates that is
in effect on the date hereof.
(h) The Company will reimburse the Executive for all reasonable relocation costs,
fees and expenses in connection with the move of the Executive and Executive’s family from
Switzerland within one year following the date of Executive’s termination of employment.
9. Confidential Information. The Executive shall hold in a fiduciary capacity
for the benefit of the Company all secret or confidential information, knowledge or data relating
to the Company or any of its Affiliated companies, and their respective businesses, which shall
have been obtained by the Executive during the Executive’s employment by the Company or any of its
Affiliated companies, provided that it shall not apply to information which is or shall become
public knowledge (other than by acts by the Executive or representatives of the Executive in
violation of this Agreement), information that is developed by the Executive independently of such
information, or knowledge or data or information that is disclosed to the Executive by a third
party under no obligation of confidentiality to the Company. After termination of the Executive’s
employment with the Company, the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those designated by it. In no
event shall an asserted violation of the provision of this Section 9 constitute a basis for
deferring or withholding any amounts otherwise payable to the Executive under this Agreement.
10. Disputed Payments And Failures To Pay. If the Company fails to make a payment
under this Agreement in whole or in part as of the payment date specified in this Agreement, either
intentionally or unintentionally, other than with the consent of the Executive, the Company shall
owe the Executive interest on the delayed payment at the applicable Federal rate provided for in
section 7872(f)(2)(A) of the Code if the Executive (i) accepts the portion (if any) of the payment
that the Company is willing to make (unless such acceptance will result in a relinquishment of the
claim to all or part of the remaining amount)
Executive Employment Agreement
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and (ii) makes prompt and reasonable good faith efforts to collect the remaining portion of the
payment. Any such interest payments shall become due and payable effective as of the applicable
payment date(s) specified in Section 5 with respect to the delinquent payment(s) due under
Section 5.
11. Funding. The Executive shall have no right, title, or interest whatsoever in
or to any assets of the Company or any investments which the Company may make to aid it in meeting
its obligations under this Agreement. The Executive’s right to receive payments under this
Agreement shall be no greater than the right of an unsecured general creditor of the Company.
Immediately prior to a Change in Control, the Company shall create an irrevocable grantor trust
(the “Rabbi Trust”) which shall be subject to the claims of creditors of the Company. In
the event that the Executive is a Specified Employee at the time he incurs a Separation From
Service or at the time the Company determines that it is reasonably likely that the Executive will
incur a Separation From Service in connection with a Change in Control, then immediately upon the
Executive’s Separation From Service or, if earlier, the date on which the Company makes a
determination that the Executive is reasonably likely to incur a Separation From Services in
connection with a Change in Control, the Company shall transfer to the Rabbi Trust cash sufficient
(on an undiscounted basis) to pay the cash amounts specified in Section 5(b)(i), the
estimated amount of the Gross-Up Payment to be made under Section 6 and the Interest
Amount. The cash amounts specified in Section 5(b)(i), the Gross-Up Payment and the
Interest Amount shall be paid from the Rabbi Trust on the dates specified in Sections 5 and
8 herein, provided that the Company shall remain liable to pay any all amounts which for
any reason are not paid from the Rabbi Trust. The trustee of the Rabbi Trust shall be a bank or
trust company selected by the Company and approved by the Executive (in his sole discretion) prior
to the Change in Control.
12. Successors.
(a) This Agreement is personal to the Executive and shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and legatees.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and
its successors and assigns.
(c) In addition to any obligations imposed by law upon any successor to the Company,
the Company will require any successor (whether direct or indirect, by purchase, merger,
consolidation, amalgamation, scheme of arrangement, exchange offer, operation of law or otherwise
(including any purchase, merger, amalgamation, reorganization, consolidation, scheme of
arrangement, exchange offer, or similar transaction of the Company or any of its Subsidiaries or
the sale, transfer or other disposition of all or substantially all of the Company’s Assets or
other transaction involving the Company or any Subsidiary or Affiliate of the Company)), to all or
substantially all of the Company’s business and/or Company’s Assets to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. Failure of the Company to obtain such
assumption and agreement at or prior to the effectiveness of any such succession shall be a breach
of this Agreement and shall entitle the Executive to compensation from the Company in the same
amount and on the same terms as the Executive would be entitled to hereunder if the Executive were
to terminate the Executive’s employment under Section 4, except that, for purposes of
implementing the foregoing, the date on which any such succession becomes effective shall be deemed
the Date of Termination. As used in this Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as provided above.
Executive Employment Agreement
11
13. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SWITZERLAND, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS. The captions of this Agreement
are not part of the provisions hereof and shall have no force or effect. All words used in this
Agreement will be construed to be of such gender or number as the circumstances require. This
Agreement may not be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed: if to the Executive, to the address set forth on the
signature page hereto; and, if to the Company, to: Xxxxxxxxxxx International Ltd., Xxx
Xxxx-Xxxxxxxx Xxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx, Attention: CEO or Vice President — Legal; or
to such other address as either party shall have furnished to the other in writing in accordance
herewith. Notices and communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable under this Agreement such
Federal, state, local or foreign taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with
any provision of this Agreement or the failure to assert any right to the Executive or the Company
may have hereunder, shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) Except as provided in Section 6 of this Agreement, this Agreement constitutes
the entire agreement and understanding between the parties relating to the subject matter hereof
and supersedes all prior employment agreements, oral or written, between the Company, any of its
Affiliates and the Executive, including, without limitation, the Employment Agreement between the
Executive and the Company dated December 31, 2009. In the event of any conflict between this
Agreement and any other contract, plan, arrangement or understanding between the Executive and the
Company (or any Affiliate of the Company) other than the ERP or the SERP, this Agreement shall
control.
(Remainder of page intentionally left blank)
Executive Employment Agreement
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and, pursuant to
the authorization from the Board or relevant committee thereof, the Company has caused these
presents to be executed in its name and on its behalf, all as of the day and year set forth below.
Date: September 14, 2010
| /s/ XXXXXX X. XXXXXX | ||||
| Xxxxxx X. Xxxxxx | ||||
| Xxxxxxxxxxx International Ltd., | ||||
| a Swiss joint-stock corporation | ||||
By:
|
/s/ XXXXXXX X. DUROC-XXXXXX | |||
| Xxxxxxx J. Duroc-Xxxxxx | ||||
| Title: Chairman and CEO | ||||
Executive Employment Agreement
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